The President's Broad Power to Pardon and Commute

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Editor's Note: Since President Bush's
commutation of the prison sentence of former vice presidential
advisor I. Lewis "Scooter" Libby, Jr., last week, critics of the
President have accused him of abuse of the "power of pardon"
granted in the Constitution. House Judiciary Committee Chairman
John Conyers (D-MI) has scheduled a hearing for this Wednesday to
air such accusations. Members of Congress should remember that the
Constitution grants the Executive an extremely broad power to
pardon and commute the sentences of those accused or convicted of
federal crimes. Whatever the merits of President Bush's decision to
commute Mr. Libby's sentence, there is little doubt that it was a
permissible act under the Constitution and strays little from
previous exercise of this power.

"The President . . . shall have Power
to grant Reprieves and Pardons for Offences against the United
States, except in Cases of Impeachment."

(Article II, Section 2, Clause 1)

The power to pardon is one of the least limited powers granted
to the President in the Constitution. The only limits mentioned in
the Constitution are that pardons are limited to offenses against
the United States (i.e., not civil or state cases), and that they
cannot affect an impeachment process. A reprieve is the commutation
or lessening of a sentence already imposed; it does not affect the
legal guilt of a person. A pardon, however, completely wipes out
the legal effects of a conviction. A pardon can be issued from the
time an offense is committed, and can even be issued after the full
sentence has been served. It cannot, however, be granted before an
offense has been committed, which would give the President the
power to waive the laws.

The presidential power to pardon was derived from the royal
English Prerogative of Kings, which dated from before the Norman
invasion. The royal power was absolute, and the king often granted
a pardon in exchange for money or military service. Parliament
tried unsuccessfully to limit the king's pardon power, and finally
it succeeded to some degree in 1701 when it passed the Act of
Settlement, which exempted impeachment from the royal pardon
power.

During the period of the Articles of Confederation, the state
constitutions conferred pardon powers of varying scopes on their
governors, but neither the New Jersey Plan nor the Virginia Plan
presented at the Constitutional Convention included a pardon power
for the chief executive. On May 29, 1787, Charles Pinckney
introduced a proposal to give the chief executive the same pardon
power as enjoyed by English monarchs, that is, complete power with
the exception of impeachment. Some delegates argued that treason
should be excluded from the pardon power. George Mason argued that
the President's pardon power "may be sometimes exercised to screen
from punishment those whom he had secretly instigated to commit the
crime and thereby prevent a discovery of his own guilt." James
Wilson answered that pardons for treason should be available and
successfully argued that the power would be best used by the
President. Impeachment was available if the President himself was
involved in the treason. A proposal for Senate approval of
presidential pardons was also defeated.

The development of the use of the pardon power reflects its
several purposes. One purpose is to temper justice with mercy in
appropriate cases, and to do justice if new or mitigating evidence
comes to bear on a person who may have been wrongfully convicted.
Alexander Hamilton reflects this in The Federalist No. 74,
in which he argues that "humanity and good policy" require that
"the benign prerogative of pardoning" was necessary to mitigate the
harsh justice of the criminal code. The pardon power would provide
for "exceptions in favor of unfortunate guilt."

Chief Justice John Marshall in United States v. Wilson
(1833) also commented on the benign aspects of the pardon power: "A
pardon is an act of grace, proceeding from the power entrusted with
the execution of the laws, which exempts the individual, on whom it
is bestowed from the punishment the law inflicts for a crime he has
committed. It is the private, though official act of the executive
magistrate…." Another purpose of the pardon power focuses
not on obtaining justice for the person pardoned, but rather on the
public-policy purposes of the government. For instance, James
Wilson argued during the Convention that "pardon before conviction
might be necessary in order to obtain the testimony of
accomplices." The public-policy purposes of the pardon were echoed
by Justice Oliver Wendell Holmes in Biddle v. Perovich
(1927): "A pardon in our days is not a private act of grace from an
individual happening to possess power. It is a part of the
constitutional scheme."

Pardons have also been used for the broader public-policy
purpose of ensuring peace and tranquility in the case of uprisings
and to bring peace after internal conflicts. Its use might be
needed in such cases. As Alexander Hamilton argued in The
Federalist No. 74, "in seasons of insurrection or rebellion
there are often critical moments when a well-timed offer of pardon
to the insurgents or rebels may restore the tranquility of the
commonwealth; and which, if suffered to pass unimproved, it may
never be possible afterwards to recall." Presidents have sought to
use the pardon power to overcome or mitigate the effects of major
crises that afflicted the polity. President George Washington
granted an amnesty to those who participated in the Whiskey
Rebellion; Presidents Abraham Lincoln and Andrew Johnson issued
amnesties to those involved with the Confederates during the Civil
War; and Presidents Gerald R. Ford and James Earl Carter granted
amnesties to Vietnam-era draft evaders.

The scope of the pardon power remains quite broad, almost
plenary. As Justice Stephen Field wrote in Ex parte Garland
(1867), "If granted before conviction, it prevents any of the
penalties and disabilities consequent upon conviction from
attaching [thereto]; if granted after conviction, it removes the
penalties and disabilities, and restores him to all his civil
rights; it makes him, as it were, a new man, and gives him a new
credit and capacity…. A pardon reaches both the punishment
prescribed for the offence and the guilt of the offender…so
that in the eye of the law the offender is as innocent as if he had
never committed the offence." A pardon is valid whether accepted or
not, because its purposes are primarily public. It is an official
act. According to United States v. Klein (1871), Congress
cannot limit the President's grant of an amnesty or pardon, but it
can grant other or further amnesties itself. Though pardons have
been litigated, the Court has consistently refused to limit the
President's discretion. Chief Justice Warren E. Burger, however, in
Schick v. Reed (1974), seemed to limit the Court's restraint to
pardons under "conditions which do not in themselves offend the
Constitution."

The possibility of a President pardoning himself for a crime is
not precluded by the explicit language of the Constitution, and,
during the summer of 1974, some of President Richard M. Nixon's
lawyers argued that it was constitutionally permissible. But a
broader reading of the Constitution and the general principles of
the traditions of United States law might lead to the conclusion
that a self-pardon is constitutionally impermissible. It would seem
to violate the principles that a man should not be a judge in his
own case; that the rule of law is supreme and the United States is
a nation of laws, not men; and that the President is not above the
law.

The pardon power has been and will remain a powerful
constitutional tool of the President. Its use has the potential to
achieve much good for the polity or to increase political conflict.
Only the wisdom of the President can ensure its appropriate
use.

James Pfiffner, Ph.D., is University Professor in the School
of Public Policy at George Mason University. This essay is
excerpted fromThe Heritage Guide
to the Constitution, a line-by-line analysis of the
original meaning of each clause of the United States Constitution,
edited by David Forte and Matthew Spalding.